Revenge Porn: When Private Moments go Public

On behalf of Raymond Law Group LLC posted in Court Decisions on Monday, May 6, 2013.

By Bruce Raymond, Esq.

It doesn't matter if you're Paris Hilton, Hulk Hogan, or a previously unknown teacher's aide, private, intimate moments can be thrown into the public by those with ill motive. In fact, as in the case of Hollie Toups, the teacher's aide, nude, pornographic and/or obscene images that were not meant to be shared wound up being posted to a website dedicated to "revenge porn", whether by a spiteful partner or through a data breach (stolen images, hacked accounts, etc.). Some websites will post any of these images, no matter whether submitted with or without consent. Some will require personal identifying information to further embarrass the subject. [To avoid further embarrassment to the victims, those sites will not be named or direct-linked in this posting.]

Not only is this embarrassing, but it can interfere with one's personal life and even one's workplace. What can a victim of revenge pornography do? The legal system is divided between state and federal law. Each state has its own laws. The victim should consider the laws of the state in which they reside, the state in which the photographs were taken, the state in which the wrongdoer lives, and the state where the website operator resides. The laws of one or more of those states may apply, along with federal law. If Connecticut has an interest in the matter, there are four causes of action for invasion of privacy, being: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other's name or likeness; (3) unreasonable publicity given to the other's private life; and (4) publicity that unreasonably places the other in a false light before the public. See Venturi v. Savitt, 191 Conn. 588, 591, 468 A.2d 933 (1983); 3 Restatement (Second), Torts § 652A- E. A victim may assert one or more of these causes of action against the wrongdoer.

Whether or not a claim can be brought against the website operator is trickier. If the picture was a self portrait, either a picture in a mirror, with a timer, or at arm's length, the victim holds copyright in that image. The victim could also obtain an assignment of copyright from whomever took the photograph. A DMCA Takedown Notice, sent pursuant to 17 USC §512, to the website operator and/or their host may provide the swiftest response; failure to take down an infringing image upon a copyright holder's request subjects the operator or host to monetary liability for violation of copyright.

If the picture is not owned by the victim, it may be more difficult to sue the website operator or host for invasion of privacy. In 1996, the U.S. Congress passed the Communications Decency Act. Section 230 ( 47 U.S.C. § 230) may protect website operators and hosts from legal liability if they were not the source of the offending content. In other words, if your ex-boyfriend submits a naked photograph he took of you to a revenge porn website, that website is likely immune from any lawsuit against it, including suits both for injunctive relief and monetary damages. "Likely" immune, because in Ms. Toups's case, Judge Hahn, without explanation, denied Godaddy.com's motion to dismiss on the grounds of immunity under Section 230.

Additionally, the internet is global. While this has many benefits, it also means that the revenge porn website may be based in Europe or Asia. The laws and courts of the United States might not be able to reach the website operator. Careful forensics might discover, however, an American company or person who could be made a party to a lawsuit, leading to the prevention of further viewing of that image in the United States. Experienced counsel can work with these investigators to determine who may be brought into such a case. Unfortunately, in some instances there simply is no law that would cause the takedown of the image.

Victims who are minors (or were when the pictures were taken) should take extra precautions. Although the images may be child pornography and subject the website operator to federal prosecution, if the victim took a self-portrait, they too could be prosecuted for creating and distributing child pornography.

Finally, victims should be wary of third-party services advertised on revenge porn websites that claim to be able to remove the photographs. In at least one case, it is a widely held belief that the so-called takedown service is, in reality, an alter-ego of the website operator itself, engaging in extortion of the victims to profit from its operations.

If you are a victim, you should consult with an attorney. Some cases may be taken by some attorneys on a contingent fee basis, but otherwise, full scale litigation could cost tens of thousands of dollars that you might not be able to recover. Even winning an award of attorneys' fees may not cover costs if the website operator lacks funds to pay it. Knowledgeable, experienced counsel can help plan a strategy to reduce embarrassment in as economically feasible a manner as possible. Senior Associate Jay Wolman contributed to this post.